Monday, September 28, 2015

Remaining silent

It happens -- a client asks for a new lawyer, says things to the court that perhaps make the lawyer look bad. Like an incompetent, uncaring, inattentive lawyer. And the lawyer may react defensively, denying the accusations even at the cost of the client's credibility. After all, that seems unfair to let the accusations stand without a public answer.

But that response may, even setting aside the ethical implications, render counsel constitutionally ineffective. Adverse positions between the attorney and client may present an actual conflict of interest that allows a presumption of prejudice.

Lopez v. Scully, a Second Circuit case, lays out the conflict. There, Mr. Lopez alleged that counsel had coerced him to plead guilty. “At
that point, the attorney had an actual conflict of interest: to argue in favor of his
client's motion would require admitting serious ethical violations and possibly subject
him to liability for malpractice; on the other hand, any contention by counsel that
defendant's allegations were not true would contradict his client. As it happened, the
attorney put his own interests ahead of his client's by denying the truth of Lopez's
allegations and thereby attacking his own client's credibility.” The Second Circuit presumed prejudice because there was an actual conflict
that arose when counsel "undermined his client's
credibility moments earlier by denying the truth of the allegations in the pro se
motion."

And so concluded the Lopez court: “Given this abdication of the attorney's role
as advocate when the judge had the discretion to impose a lower sentence and
arguable grounds for leniency existed, we believe that Lopez has shown that an
actual conflict of interest adversely affected his attorney's performance in violation of
his Sixth Amendment right to effective assistance of counsel.”

The Tenth Circuit came to a similar conclusion inUS v. Collins, and the Seventh Circuit did so in US v. Morris -- "Morris has shown that an actual conflict of interest . . . [his attorney] would seem to have a self-interest in protecting himself from a
malpractice claim. However, Morris's argument was predicated on [the lawyer's] purportedly false advice . . . . In situations such as Morris's, courts have presumed
prejudice.”

The ethical implications are also damning if not handled carefully. But that's for another post.